The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13922
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE DALE EPPS, JR.,
a.k.a. ksaber2040,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cr-00036-BJD-JRK-1
____________________
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2 Opinion of the Court 21-13922
Before NEWSOM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Wayne Dale Epps, Jr. appeals his 144-month sentence for
attempted online enticement of a minor to engage in illegal sexual
activity. Epps argues that the district court both misinterpreted
and then misapplied the guidelines for determining whether his
earlier October 2019 conduct was “relevant conduct” under
U.S.S.G. § 1B1.3(a)(1). Alternatively, Epps argues that the district
court clearly erred when it found that his earlier conversations with
the undercover agent in October 2019 were used “in preparation
for” enticing a fictitious minor in February 2020. After careful
review, we affirm Epps’s sentence.
I. BACKGROUND
A. Facts
On October 2, 2019, a Federal Bureau of Investigations
(“FBI”) agent began an undercover investigation to identify adults
who were seeking to contact and engage in illegal sexual activity
with children. In a public chatroom, the agent posted that he “had
access to an 11-year-old child.” That same day, Epps contacted the
agent through private message.
Between October 2 and 17, 2019, Epps communicated with
the agent as “ksaber2040.” The agent described his “daughter” as
an 11-year-old girl, and Epps asked for a photo of the agent and his
daughter. The agent sent a photo of what appeared to be an 11- or
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21-13922 Opinion of the Court 3
12-year-old child, but the photo did not depict an actual child. Epps
stated that he could only “hang out” with the agent and his
daughter in the “early mornings or late nights” because of his work
schedule. When the agent asked what Epps meant by “hang out,”
Epps stated he “need[ed]” oral sex and clarified that he wanted the
11-year-old child to do it. The agent said that they could not meet
up that evening, but he would check when his wife was working
the night shift and he might be able to the following day.
A few days later, Epps followed up with the agent. Epps
reiterated that he wanted the child to perform oral sex on him. The
agent asked if Epps would be willing to have sex with the child if
she wanted to, and Epps said, “Yeah if she was cute.” Epps stated
that he would not “bail” if the agent set up a time for them to meet.
The agent explained that his wife worked normal shifts so
Epps would not be able to meet the child that week. In response,
Epps asked, “Till then can i have another pic of her?” The agent
asked what kind of photo Epps wanted, and Epps asked for one that
showed the child’s genitalia. The agent responded that he would
“try to get one” if Epps wanted him to. Epps replied, “Yes please.”
A few days later, the agent contacted Epps and informed him
that he had his daughter alone the following night. Epps said he
could meet at 11:00 p.m. and confirmed again that he wanted the
child to perform oral sex on him. However, Epps did not follow
through on his stated intention to meet the child for sex.
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Several months later, on February 14, 2020, Epps reinitiated
contact with the agent. Epps said he “[h]ad alot [sic] of stupid stuff
happen” and “inquir[ed] about [the agent’s] offer.” The agent
asked who Epps was. Epps explained how the agent knew Epps
and asked if he could still meet the agent’s daughter. The agent
said, “Dude I don’t remember u what did we agree to?” Epps
explained that he wanted to meet the child and “possibly have her
stroke or suck” him.
The agent said he did not remember Epps, so Epps clarified
that his name was Wayne, they spoke before, and the agent’s wife
was supposed to move to a night shift. The agent said, “Wait r u
the dude who was supposed to meet and didn’t show.” Epps
replied, “No. I was waiting on you to let me know when her shift
changed. Then my work schedule got crazy and we fell outta
contact. We never set a time to meet because of that.” The agent
told Epps that his daughter had turned 12 and asked if Epps still
wanted her to perform oral sex. Epps said he did and explained
that he “got shifted to an over night for a month and half till [the
company] had enough people trained to fill the shift.” The agent
asked if Epps was “clean,” and Epps replied that he was and that he
could use a “flavored condom.”
Epps and the agent agreed to meet on February 18 at a
shopping area in Jacksonville, Florida. Epps lived in Jacksonville.
Upon Epps’s arrival at the predetermined location, FBI agents
arrested Epps.
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A short time later, Epps was interviewed. During that
interview, Epps admitted that he had “engaged in sexually explicit
conversations with the [agent’s] persona on the app and traveled to
the particular predetermined location to meet the [agent] and the
purported child.”
Epps consented to a search of his residence, cellphone, and
vehicle. The search of his cellphone revealed that the application
he used to communicate with the agent was “actively running on
the device,” the username listed on the account was “ksaber2040,”
and the private message section of the application, beginning on
February 14, 2020, was preserved on the cellphone.
B. District Court Proceedings
A federal grand jury indicted Epps with one count of
attempted online enticement of a minor to engage in illegal sexual
activity, in violation of 18 U.S.C. § 2422(b). In June 2021, Epps
pleaded guilty to that count.
Ordinarily, a defendant who violates 18 U.S.C. § 2422(b) has
a base offense level of 28. See U.S.S.G. § 2G1.3(a)(3). However,
Epps’s presentence investigation report (“PSR”) recommended a
base offense level of 32 under U.S.S.G. § 2G2.1(a). Specifically,
§ 2G1.3(c)(1) provides as follows: When the offense involves
enticing “a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct,” a district
court instead must apply § 2G2.1 (which provides for a base offense
level of 32), “if the resulting offense level is greater than that
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determined [through the application of § 2G1.3].” See id.
§ 2G1.3(c)(1) & cmt. n.5(A). Because 32 is greater than 28, the PSR
recommended that the district court apply § 2G2.1(a)’s base offense
level of 32 pursuant to the cross reference in § 2G1.3(c)(1). In this
regard, the PSR reported that in October 2019 Epps “requested that
the [agent] send him a picture of the ‘child,’ and specifically asked,
‘Do you have any that shows her tits or pussy?’” Thus, Epps
requested a sexually explicit picture of the child. 1
The PSR also recommended (1) a four-level increase under
§ 2G2.1(b)(1)(A) because the offense involved a minor who was
under 12 years old; (2) a two-level increase under § 2G2.1(b)(6)(B)
because the offense involved the use of a computer or computer
service “to persuade, induce, entice, coerce, or facilitate the travel
of, a minor to engage in sexually explicit conduct, or to otherwise
solicit participation by a minor” to produce sexually explicit
material; and (3) a five-level increase under § 4B1.5(b)(1) because
Epps engaged in a pattern of prohibited sexual conduct. Lastly, the
PSR recommended reducing Epps’s offense level by three levels
under § 3E1.1(a) and (b) because Epps demonstrated acceptance of
responsibility. These recommendations yielded a total offense
level of 40.
With no criminal history points, Epps’s criminal history
category was I. Based on a total offense level of 40 and a criminal
1 Although Epps challenged the application of this cross reference in the district
court based on United States v. Caniff, 955 F.3d 1183 (11th Cir. 2020), Epps
does not raise this Caniff argument on appeal.
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history category of I, the PSR calculated an advisory guidelines
range of 292 to 365 months’ imprisonment. The statutory
minimum term of imprisonment was 10 years. 18 U.S.C. § 2422(b).
Before sentencing, Epps filed a sentencing memorandum
and argued, in part, that his October 2019 conduct was not
“relevant conduct” for any purposes in sentencing and should not
be considered at all. Epps asserted that the October 2019 conduct
took place four months before the February 2020 conduct, that he
had stopped communication with the agent, and that he had
abandoned his intent to follow through with his October 2019
conduct. Epps claimed that his October 2019 conduct would have
hurt his February 2020 efforts if the victim was anyone other than
an undercover agent because it would have “hurt his credibility”
and would have made him seem “suspicious and untrustworthy.”
Accordingly, Epps argued that his October 2019 conduct did
nothing to further the February 2020 enticement, and there was no
indication that his October 2019 communications were in
preparation for enticing a minor in February 2020.
At the sentencing hearing, Epps did not object to the PSR’s
facts about his offense conduct or to the government’s exhibits
showing screenshots of Epps’s chats with the agent in October 2019
and February 2020. Instead, Epps reiterated the arguments from
his memorandum.
In response, the government argued that Epps’s October
2019 conduct was “relevant conduct” under the guidelines because
he acted “in preparation for the commission of the offense.” The
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government emphasized that in October, Epps “establish[ed] the
ground rules” by telling the agent that he wanted to have sex with
an 11-year-old child, but after a plan was made to meet, Epps did
not follow through “because other things got in the way.” In other
words, the government contended that the October 2019 conduct
was “relevant conduct” to his February 2020 offense because Epps
paused—not abandoned—his attempt.
The district court acknowledged that Epps made an “erudite
argument” but stated that his argument was “undercut by the
facts” of his case. The district court explained that Epps’s October
2019 conversations were “certainly used as a means [for him to]
reengag[e]” in conversation with the agent in February 2020 and
were thus “in preparation for” the February 2020 offense.
Therefore, the district court determined that the PSR properly
calculated the guidelines and adopted them.
The district court adopted the PSR’s guidelines calculations,
varied downward from the advisory guidelines range of 292 to 365
months, and imposed a sentence of 144 months’ imprisonment,
followed by a lifetime of supervised release. After the district court
pronounced the sentence, Epps objected to the district court’s
“rulings on [his] presentence report objections.”
This appeal followed.
II. STANDARD OF REVIEW
Ordinarily, we review de novo the district court’s legal
interpretation of the Sentencing Guidelines and the district court’s
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application of the Sentencing Guidelines to the facts. United States
v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). However, when a
party fails to make specific objections at sentencing after being
given an opportunity to do so, challenges to the sentence on appeal
will be reviewed only for plain error. United States v. Ramirez-
Flores, 743 F.3d 816, 821 (11th Cir. 2014).
Additionally, we review for clear error the application of the
“relevant conduct” guidelines in U.S.S.G. § 1B1.3 to the facts of the
case. United States v. Valladares, 544 F.3d 1257, 1267 (11th Cir.
2008).
III. DISCUSSION
We begin with an overview of the “relevant conduct”
guidelines in § 1B1.3(a)(1) and then address Epps’s arguments.
A.
When calculating a defendant’s advisory guidelines range, a
district court must consider all “relevant conduct,” as defined in
§ 1B1.3. United States v. Siegelman, 786 F.3d 1322, 1330–31 (11th
Cir. 2015). Activity that qualifies as “relevant conduct”
includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant . . . that occurred during the commission of the
offense of conviction[] [or] in preparation for that offense.”
U.S.S.G. § 1B1.3(a)(1) (emphasis added). “[R]elevant conduct is
broadly defined to include both uncharged and acquitted conduct
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that is proven at sentencing by a preponderance of the evidence.”
Siegelman, 786 F.3d at 1332.
B.
Epps argues that the district court misapplied § 1B1.3(a)(1)
by both (1) misinterpreting the legal phrase “in preparation for”
and (2) making a finding that his October 2019 conduct was “in
preparation for” the charged offense.
Epps contends that because the guidelines do not define the
phrase “in preparation for,” the plain meaning should apply.
Relying on Black’s Law Dictionary, Epps argues that the plain
meaning of “preparation” is “[t]he act or process of devising the
means necessary to commit a crime.” Epps claims that the
government must show the conduct was “taken prior to, and in
order to facilitate, the charged offense.” Epps contends the mere
fact that his prior conduct made it easier to reengage with the agent
in February 2020 is insufficient to meet the standard of “in
preparation for,” either legally or factually. Epps also claims the
government must show he explicitly intended in October 2019 to
entice a minor in February 2020.
In response, the government argues that Epps waived his
legal interpretation argument by not raising it adequately in the
district court and that this Court should review that legal issue for
plain error. Epps disagrees, contending his arguments in the
district court were broad enough to preserve both the legal and
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factual issues as to whether his October 2019 conduct was “relevant
conduct.”
We need not resolve that debate as Epps has not shown any
error, plain or otherwise, for several reasons.
First, Epps is correct that the guidelines do not define “in
preparation for” and that Black’s Law Dictionary defines
“preparation” as “[t]he act or process of devising the means
necessary to commit a crime.” Preparation, Black’s Law
Dictionary (11th ed. 2019). However, Epps is incorrect that the
government must show Epps had the specific intent in October
2019 to entice a minor at a specific later time in February 2020.
Nothing in the “relevant conduct” guidelines or the plain meaning
of “in preparation for” mentions or requires a showing of such
specific intent as Epps asserts.
Second, we need not resolve the parameters of the phrase
“in preparation for” because, as the district court found, Epps’s
October 2019 acts so clearly facilitated the means necessary to
commit the charged offense. Indeed, the district court found
Epps’s October 2019 conversations with the agent were used “as a
tool” to help Epps reengage with the agent just a few months later.
Furthermore, during the October 2019 conversations, the
agent posing as the child’s father repeatedly expressed disbelief that
Epps would follow through with his stated desires. By requesting
in October 2019 that the agent send a sexually explicit photograph
of the child, Epps laid the groundwork (1) to show he truly was
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interested in engaging in sexual activity with the child and (2) to
arrange a meeting with the child to do just that. In short, Epps
asked the agent for a photograph to facilitate his plan to later entice
the child.
The fact that Epps did not follow through on his plan until
four months later does not mean his October 2019 conversations
with the agent were not in preparation for the crime he planned,
and later attempted, to commit. In fact, when Epps restarted
communications with the agent in February 2020, Epps reminded
the agent about the previously exchanged messages. Epps also
explained that he had stopped responding because he (1) “had a lot
of stupid stuff happen,” (2) was waiting for the agent to tell him
when his wife had started working a night shift, and (3) had moved
to an overnight shift at his job. Epps then renewed his request to
engage in sexual acts with the child by “inquiring about [the
agent’s] offer,” referring back to his October 2019 conversations
with the agent that demonstrated his serious interest.
Accordingly, under the particular facts of this case, the
district court did not err, much less clearly err, when it found
Epps’s October 2019 conduct—including his requesting a sexually
explicit photograph of the 11-year-old child from the agent—was
“in preparation for” his February 2020 offense of attempting to
entice that child to engage in sexual activity.
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IV. CONCLUSION
For these reasons, we find no reversible errors in the district
court’s determination that Epps’s October 2019 conduct was
relevant conduct under § 1B1.3(a)(1). Epps’s 144-month sentence
is affirmed.
AFFIRMED.